Court won’t block Oregon same-sex marriages

Posted Wed, June 4th, 2014 4:30 pm by Lyle Denniston

The Supreme Court, in a one-sentence order without explanation, refused on Wednesday afternoon to stop same-sex marriages in Oregon. The denial was by the full Court, after Justice Anthony M. Kennedy had submitted the plea to it.

The request had come from a private group that is strongly opposed to same-sex marriage, the National Organization for Marriage. It had been barred from taking part in the case over the constitutionality of an Oregon ban, and it had asked the Justices to put off a judge’s decision striking down that ban. It has an appeal on file at the U.S. Court of Appeals for the Ninth Circuit, and wanted the federal judge’s decision put off until that appeal was decided.

In January, the Court had put on hold a different federal judge’s order striking down Utah’s same-sex marriage ban. In that case, state officials had sought a delay. Although other federal judges have struck down similar bans elsewhere, in all of those cases the rulings have been put on hold — when that was requested by state officials — while appeals went forward.

Oregon officials refused to defend their state’s ban and, in fact, agreed with the same-sex couples that the ban should be nullified. There thus was no one in an official government position to pursue an appeal, so the National Organization for Marriage took up that task on its own.

The federal judge in Eugene, Oregon, who found that state’s ban invalid, refused to allow NOM to join in that case — among other reasons, because he found it had tried to join in too late. NOM then tried to get the Ninth Circuit to delay the ruling, and that failed, too. The group then moved on to the Supreme Court.

Although the Justices did not explain their order, the clear implication of it was that the Court would not be likely to postpone lower court rulings against same-sex marriage bans unless they were asked to do so by state officials. Last June, in Hollingsworth v. Perry, the Court refused to allow the sponsors of a state ban in California (“Proposition 8”) to pursue an appeal in place of state officials, who had declined to do so. After that, same-sex marriages were legal and were performed in the nation’s largest state.

County officials in Oregon have been issuing marriage licenses in the wake of the judge’s decision nullifying the ban. The same has been true in Pennsylvania, where state officials also declined to appeal a ruling against their state’s ban, and no one else has come forward to try to pursue an appeal or a delay.

Counting Oregon and Pennsylvania, there are now nineteen states in which same-sex marriages are permitted. In eleven other states, judges have issued orders striking down bans on such marriages, or narrower bans on recognition of such marriages performed out of state. Those rulings, though, are on hold while appeals proceed.

In the nearly full year since the Supreme Court, in United States v. Windsor, ruled unconstitutional a key part of the federal Defense of Marriage Act, no federal or state court has upheld a ban on same-sex marriages. Many of the decisions rely on reasoning in the Windsor ruling, even though the Court stressed there that it was not ruling on a state’s authority to ban such marriages.

Same-sex marriage cases are now unfolding in five federal courts of appeals. The cases are furthest along in the U.S. Court of Appeals for the Fourth Circuit, which sits in Richmond, Virginia, and the U.S. Court of Appeals for the Tenth Circuit in Denver, where briefing and hearings have concluded. The other cases are awaiting briefing or hearings in the Fifth, Sixth and Ninth Circuits.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.